Court File and Parties
NEWMARKET COURT FILE NO.: CV-18-136565-00 DATE: 20181126 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Luigi Gino Barbieri and Filomena Barbieri, Applicants AND: 1668135 Ontario Inc. and Tony Gentile, Respondents
BEFORE: The Honourable Mr. Justice C.F. de Sa
COUNSEL: Avi Vaturi, Counsel for the Applicants Robert H. Karrass, Counsel for the Respondents
HEARD: November 15, 2018
Ruling on Motion
Background
[1] The matter stems from damages alleged to have been sustained by the plaintiffs as a result of the defendants’ development activity on the land immediately adjacent to the plaintiffs’ residential home.
[2] The plaintiffs commenced their action for recovery including damages to a stone retaining wall, and a fence along the property line separating the plaintiffs’ property from the land being developed by the defendants.
[3] At the time of the plaintiffs’ claim being issued, the damages had been assessed at $24,500.
[4] Despite there being minor additional damages caused by the defendants, the plaintiffs chose to bring the matter in the Small Claims Court because of the perceived costs and time saving benefits compared to the minor damages they would be abandoning in that forum.
[5] The pleadings were exchanged, and a settlement conference was conducted.
[6] Upon failing to reach a resolution, the plaintiffs proceeded to set the matter down to trial.
[7] Due to unforeseeable circumstances (clerical errors, scheduling conflicts, key witness unavailability, religious holidays, family deaths, etc.), the trial was adjourned on numerous occasions.
[8] On or about September 7, 2017, the plaintiffs discovered that the quantum of the damages had drastically increased to an amount which was outside the monetary jurisdiction of the Small Claims Court. The plaintiffs only came upon this knowledge through the attendance of an insurance adjuster who attended at the property and pointed out the structural damage to the plaintiffs’ exterior walls of the home.
[9] Later in 2017, the plaintiffs retained a contractor/engineer, to review the damages and provide a quote for the repair work. The quotes received totalled $97,270.
[10] The plaintiffs notified the defendants the next day with respect to the change in the quantum, and their intention to bring a motion to transfer the matter to Superior Court. Unfortunately, prior to bringing the motion, one of the plaintiffs, Mr. Gino Barbieri suffered a cardiac medical condition, and was unable to take any steps regarding the litigation. The defendants agreed to adjourn the Small Claims matter with a view to accommodating the transfer motion.
[11] On March 27, 2018, the trial in Small Claims Court was adjourned, with the requirement that the matter was to be transferred before December 10, 2018, to avoid the pleadings being struck.
Analysis
[12] The plaintiffs are seeking an Order to transfer the matter, Small Claims Court File No. SC-15-107847-00, to the Superior Court, to proceed under Rule 76 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (simplified procedure). According to the plaintiffs, the claim now raises several complex issues that will likely require expert reports. Given the added complexity, discovery is warranted which is only available in the Superior Court.
[13] The plaintiffs are also seeking an Order allowing them to amend their pleadings to reflect the new damages discovered late 2017 which is outside the scope of damages available in the Small Claims Court.
[14] The defendants resist the matter being transferred to Superior Court. The defendants take the position that the plaintiffs knew about the damage, but failed to exercise the requisite diligence in ascertaining the extent of the alleged damages when they became aware of them prior to November 9, 2015.
[15] According to the defendants, there are no “new facts” which change the basis for the original claim. A change in the quantum of damages is itself not sufficient to constitute a new fact to warrant transferring the matter to Superior Court. To allow the plaintiffs to transfer their Small Claims Court matter to the Superior Court of Justice and to amend their pleadings to include damages which were discoverable more than 2 or 3 years prior would allow the plaintiffs to circumvent the limitation period set out in the Limitations Act, 2002, S.O. 2002, c 24, Sch. B.
[16] I recognize the concerns raised by the defendants. I agree with the defendants that to permit the plaintiffs to amend their claim to seek damages which fall outside the requisite limitation period would be unfair. That said, I am not in a position to make a decision on the “discoverability” of the damages on the basis of the limited record before me. I also recognize that it would not make sense for the plaintiffs to commence a separate proceeding in Superior Court while still maintaining a separate claim in Small Claims Court which relates to the same factual matrix.
[17] Accordingly, I will allow the matter to be transferred to Superior Court without prejudicing the defendants’ ability to seek relief/summary judgment against any claim for damages made by the plaintiffs that fall outside the relevant limitation period.
[18] Given that the results are divided on the motion, each party will bear its own costs.